160-v1\ Case C-160/15: GS MEDIA BV v. Sanoma Media Netherlands and others On April 7, 2016 Advocate General Wathelet (hereafter "AG") delivered his opinion on the GS Meda BV v Sanoma Media Case (C-160/15), which was referred for a preliminary ruling by the Dutch Supreme Court. In a nutshell, the legal questions posed by the Court revolve around the issue of whether publishing hyperlinks on a website that link to infringing content can be deemed an act of communication to the public for the purposes of Article 3(1) of Directive 2001/29/EC (hereinafter “Infosoc”). The main facts of the case are as follows. Facts Sanoma Media, the publisher in the Netherlands of Playboy Magazine, commissioned a photoshoot of a famous Dutch TV personality for the December issue of the magazine. On October 27, 2011 GS Media published a hyperlink on one of the websites it operates that redirected users to an Australian database storage website where they could download a zip file with eleven pdf documents, each containing an image of the above-referred photoshoot. Upon request, GS Media refused to remove the hyperlink. Nonetheless, the photographs were deleted from Filefactory.com. In view of this, Sanoma Media brought legal actions against GS Media for Copyright infringement. The claim was upheld by the Amsterdam District Court, yet in the second instance, the Amsterdam Court of Appeal argued that the pictures had already been made available to the public, as they had been posted on Filefactory.com. Thus, no copyright infringement was found. Sanoma Media ultimately appealed to the Supreme Court, which stayed the proceedings and referred three questions to the Court of Justice of the European Union (hereinafter “CJEU”) for a preliminary ruling. As noted by the AG, the main issues that the Court sought to clarify were whether: 1. Article 3(1) Infosoc must be interpreted to mean that the provision on a website of a hyperlink to another website operated by a third party, which is accessible to the general internet public and on which works protected by copyright are made available to the public, without the authorization of the copyright holder constitutes an act of communication to the public. 2. The fact that the person who posts the hyperlink to a website is or ought to be aware of the lack of consent by the copyright holder for the initial communication of the works on that website is important for the purpose of Article 3(1) of Directive 2001/29. 3. The fact that a hyperlink has facilitated access to the works in question is relevant in accordance with that provision. Legal reasoning As regards the first question, AG Wathelet notes that settled case-law has construed “communication to the public” as encompassing two cumulative criteria, that is, (i) an actual act of communication that must also be (ii) directed to the “public.” While analyzing the first requirement, AG Wathelet concludes that hyperlinks that lead, even if directly, to protected content do not make those works available if they are already freely accessible on another website. In such a case, the act of making available is carried out by the person first communicating those works. Following the rationale applied by the CJEU in Football Association Premier League (C-403/08), it is argued that in order to establish an act of communication, the intervention of the "hyperlinker" must be “indispensable” to benefit or enjoy the protected works. Thus, it is concluded that posting hyperlinks on a website that redirect to copyrighted works that are already freely accessible on another website cannot be regarded as an act of communication within the meaning of Article 3(1) Infosoc. As such, the intervention of the website operator is not “indispensable.” 160-v1\ Against this background, the AG goes on to examine the second question, i.e. the meaning of communication to the “public,” in the wake of Svensson and Others (C-466/2). In this decision, the CJEU noted that the new public criterion is only applicable if the initial communication was not authorized by the rightholder. In the case at hand, there was no such prior authorization, and thus, the requirement is not applicable. In his opinion, AG Wathelet goes even further and argues that even if it were applicable, the act of communication demands that the work be made available to a new public, that is, "public that was not taken into account by the copyright holder when they authorized the initial communication to the public of the works in question." Thus, given that the photographs were already freely and generally available on the internet, the new public requirement would not be met. In connection to question 3, i.e. whether additional circumstances should be taken into consideration by the Court in the assessment of the existence of an act of communication to the public by means of a hyperlink to copyrighted work that has been disseminated without the holder’s consent, the AG takes a restrictive approach. Following Svensson and Others (C-466/2) (paragraph 41) the AG argues that copyright protection cannot be enhanced by broadening the scope of Article 3(1) Infosoc, so as to include a wider range of activities other than those expressly provided for in this provision. To be sure, adopting a different interpretation would distort the balance of rights and interests struck by the Directive. At this point, the AG’s opinion departs significantly from Svensson and Others (C-466/2) and concludes that internet users are usually not aware of whether the initial communication to the public was carried out with the consent of the lawful rightholder. It is then further argued that posting hyperlinks is essential for the good functioning of the internet architecture, and hence, if users bear the risk of copyright infringement every time they post a link, this balance will be inevitably distorted. Crucially, AG Wathelet ultimately deems that such a restriction can only be provided for by the EU legislative powers. Conclusion In sum, according to the AG's Opinion, posting hyperlinks to protected content does not constitute an act of communication to the public if the works are freely accessible, even without prior authorization of the lawful rightholder. Crucially, actual knowledge of such authorization and the fact that it may facilitate the user's access to the works are irrelevant for the purposes of Article 3(1) Infosoc. For more information, please contact Naiara Elizagarate, Michael Fonseca or Teresa Trallero.